Judge on a roll with toilet paper opinion

The makers of Cottonelle, left, and Quilted Northern toilet paper have been fighting in court over their quilted quality. (Brent Lewis, Chicago Tribune)

The 7th U.S. Circuit Court of Appeals in Chicago takes on many weighty legal issues of the day. This was not one of them.

In a legal battle between two titans of toilet paper, the court held this week that quilted bathroom tissue is too basic a product to be trademarked, upholding a lower court that threw out the lawsuit.

"Toilet paper. This case is about toilet paper," Judge Terence Evans led off the opinion. "Are there many other things most people use every day but think very little about? We doubt it."

At issue was a lawsuit in which Georgia-Pacific Consumer Products LP, which makes Northern Quilted brand toilet paper, accused Kimberly-Clark Corp., maker of Cottonelle tissue, of infringing on its trademark for its "diamond quilted" design of toilet paper.

Despite the mundane subject, the stakes were high. As the opinion pointed out, the toilet paper industry is a $4 billion-a-year business.

And with lawyers being lawyers, the case produced a staggering 675,000 pages of evidence — enough paper, printed out and laid end-to-end, to stretch from Chicago to Michigan City, Ind., and back. (We have no idea how many rolls of toilet paper that would equal.) The lawyers also cited almost 120 cases and 20 federal statutes in arguing the legal issues.

"That's quite a record considering, again, that this case is about toilet paper," opined Evans, who is that rare appeals court judge who can have some fun with his writing when the opportunity presents itself.

Given the subject, the judge missed few opportunities at puns, at one point noting that despite the fact that the lower-court judge "dutifully plied her opinion, we now wipe the slate clean and address Georgia-Pacific's claims."

Judges Michael Kanne and Diane Sykes joined in the decision.

A Georgia-Pacific spokesman said the company was disappointed with the decision and is considering its options. A Kimberly-Clark spokesman said the company does not comment on pending litigation.

This was by no means the only arcane trademark case the court has ruled on of late. Last year it held that circular beach towels once sold by actor Woody Harrelson couldn't be trademarked either.